EXHIBIT 10.47
EMPLOYMENT AGREEMENT
This AGREEMENT is made and entered into as of the 1st day of January 1999, by
and between PARAVANT INC., a Florida corporation (the "Company") and
XXXXXXX X. XxXXXXXX, (the "Employee").
WHEREAS, the Company desires to obtain the benefit of the services of the
Employee, and the Employee desires to render such services on the terms and
conditions hereinafter set forth; and,
WHEREAS, the Company and the Employee desire to provide limited protection of
the Employee's employment in the event of a change in ownership of the
Company by virtue of a sale, merger by the Company into, or the combination
with, another corporation or other form of takeover wherein the new
ownership may terminate the employee without cause.
NOW, THEREFORE, the Parties hereto, in consideration of the premises and the
mutual covenants herein contained, hereby agree as follows:
1. Termination of Prior Agreement. Upon the execution of this Agreement, all
prior employment agreements between the Employee, and the Company or any of
its affiliates, subsidiaries, and predecessor constituent corporations are
terminated and of no further force and effect.
2. Term of Employment. Subject to the terms and conditions hereinafter set
forth, the Company hereby enters into the employment of the Employee, or
any of subsidiary or affiliate of the Company, as the Company shall, from
time to time, select, for an employment term commencing on the date of
execution of this Agreement and terminating on 31 December 2001. The period
during which the Employee is employed pursuant to this Agreement is
hereinafter called the "Term of Employment." The Term of Employment will
normally be submitted to the Board of Directors, at the first board meeting
each fiscal year, for the succeeding calendar year, for review and updates
of terms and conditions.
3. Scope of Employment. During the Term of Employment, the Employee shall be
employed as an officer of the Company with duties and responsibilities
commensurate with those of President of Paravant Computer Systems Business
Unit. In addition, the Employee shall well and faithfully render and
perform such other executive and managerial services, as may be assigned to
him, from time to time, by or under the authority of the Board of Directors
of the Company or of any subsidiary or affiliate of the Company. The
Employee's duties and responsibilities must regularly be performed in
Melbourne, Florida or within a 25-mile radius thereof. The Employee will
devote his full time and efforts to the business and affairs of the
Company, or such subsidiary, or affiliate as now or hereafter conducted,
and shall be at all times subject to the direction and control of the Board
of Directors of the Company or such subsidiary or affiliate. The Employee
shall render such services that are in accordance with his utmost abilities
and shall use his best efforts to promote the interests of the Company and
subsidiaries and affiliates. The Employee will not engage in any capacity
or activity which is, or may be, contrary to the welfare, interest or
benefit of the business now or hereafter conducted by the Company and its
subsidiaries and affiliates.
4. Compensation. As full compensation for all services provided for herein,
including without limiting the generality of the foregoing, all services to
be rendered by the Employee as an officer or director of the Company or of
any subsidiary or affiliate of the Company, the Company will pay, cause to
be paid, to the Employee, and the Employee will accept, a salary, during
the Term of Employment, at a minimum annual rate of One Hundred Eighty-one
Thousand and Six Hundred and Eighty Dollars ($181,680) to be paid in
regular installments in accordance with the Company's usual paying
practices. Such payments will be subjected to such deductions by the
Company as the Company is from time to time required to make pursuant to
law, government regulations or order or by agreement with, or consent of,
the Employee. The Board of Directors shall have the authority to increase
the Employee's salary, at its discretion from time to time, and the Board
of Directors also shall have the authority to enhance any bonus or other
forms of compensation to the Employee
5. Expenses. The Employee shall be entitled to reimbursement by the Company
for reasonable expenses actually incurred by him on its behalf in the
course of his employment by the Company, upon the presentation by the
Employee, from time to time, of an itemized account of such expenditures,
together with such vouchers and other receipts as the Company may request.
6. Vacation. The Employee shall be entitled to vacations in accordance with
the Company's prevailing policy for its operating executives.
7. Benefits. The Employee shall be entitled to participate in all group life
insurance, medical and hospitalization plans, and pension, stock option and
profit sharing plans as are presently being offered by the Company or which
may hereafter during the Term of Employment be offered by the Company
generally to its operating executives
8. Payments on Death or Disability. In the event that the Employee shall die
or become disabled during the Term of Employment or any renewal thereof,
the Company shall pay to his heirs in the case of his death, or to him or
his guardian, in case of his disability, a lump sum payment equal to 12
months of compensation due to him at that time hereunder or equal monthly
installments covering such 12 months compensation at the discretion of the
Employee, his or her guardian, whatever the case may be. For purposes of
this Agreement, disability of the Employee shall have occurred if (a) the
Employee shall become physically or mentally incapable of properly
performing his services to the Company as provided hereunder excluding
infrequent and temporary absences due to ordinary illnesses, (b) such
incapacity shall exist or be reasonably expected to exist for more than 90
days in the aggregate during any 12 consecutive months covered hereunder or
in any renewals hereof, and (c) either the Employee or the Company shall
have given the other 30 days written notice of his or its intention to
terminate the Employee's active employment by the Company due to such
disability. For purposes of this Agreement, the Employee shall on or
immediately after executing this Agreement provide the Company with a
written list of his heirs in order of preference regarding death payment
benefits hereunder. This list may be altered and changed from time to time
by the Employee by giving written notice of such changes or new list
thereof to the Company as provided herein.
9. Severance. In the event that the Employee's employment with the Company is
terminated thereby 'without cause,' which includes any Company or Board
action contrary to the
Employee's scope of employment as set forth in Paragraph 3, during the Term
thereof, the Employee shall be entitled to, as severance hereunder, two
year's full salary, and the Employee shall also be entitled to 12 months
benefits as provided for and paid out in the manner specified herein.
Termination for cause shall include Employee's failure to perform his
duties hereunder, his conviction of a felony, alcoholism, illegal drug
abuse, violations of corporate or securities laws or similar infractions.
10. Vesting of Benefits etc. Upon the effective termination date of the
Executive's employment: (a) by the Company without Cause (Paragraph 9), (b)
due to Disability (Paragraph 8), or (c) in the case of Change of Control
(Paragraph 15):
(1) The Executive shall become vested immediately in any unvested stock
options (other than incentive stock options under a "qualified" plan)
that the Executive may have at the time of his termination; and must
exercise all stock options within 90 days of termination or forfeit
either all unexercised options;
(2) To the extent, and only to the extent, that the same is permitted by
law without thereby disqualifying any plan of the Company or an
affiliate that is a "qualified" plan under the Internal Revenue Code or
that otherwise enjoys or provides tax benefits to employees under the
Internal Revenue Code, the Executive shall become vested immediately in
any and all other benefits under each and every benefit plan of the
Company or any affiliate and in which the Executive, at the time of his
termination, had unvested benefits.
(3) The company will indemnify and defend the Executive in the same manner
and to the same degree as if he was an employee, executive, officer and
director of the Company, for all litigation or other actions brought
against the Executive originating as a result of association of the
Executive with the Company, including but not limited to all claims,
liability, damage, loss, expense, attorneys' fees, court costs,
judgements, settlements, fines, etc.
11. Covenant not to Compete. During the Term of Employment and for a period of
two (2) years after the Term of Employment, the Employee shall not engage,
directly or indirectly, within the United States in any business engaged in
the design, development, manufacture and sale of rugged computers. For the
purpose of this paragraph, the Employee will be deemed, directly or
indirectly, engaged in a business if he participates in such business as
proprietor, partner, joint venturer, stockholder, director, officer,
lender, manager, employee, consultant, advisor or agent or if he otherwise
controls such business. The Employee shall not, for purposes of this
paragraph, be deemed stockholder if he holds less than one (1 %) percent of
the outstanding shares of any publicly owned corporation engaged in the
same or similar business to that of the Company or any of its divisions,
subsidiaries or affiliates; provided, however, that the Employee shall not
be in a control position with regard to such corporation. In addition, the
Employee shall not be in a control position with regard to such
corporation. In addition, the Employee shall not at any time, during or
after the termination of this Agreement, engage in any business which uses
as its name, in whole or in part, "Paravant Inc.," or any other name then
used by the Company or any of its affiliates or subsidiaries.
12. Non-Disclosure: Except as may be required by law or with the express
permission of the Company's Board of Directors, the Employee will not at
any time, directly or indirectly,
disclose or furnish to any other person, firm or corporation: (a) the
methods of conducting the business of the Company or its subsidiaries or
affiliates; (b) a description of any of the methods of obtaining business,
or manufacturing or advertising products, or of obtaining customers
thereof; and/or (c) any confidential information acquired by him during the
course of his employment by the Company, its predecessors, subsidiaries or
affiliates, including, without limiting the generality of the foregoing,
the names of any new customers or prospective customers of, or any person,
firm or corporation, who or which have, or shall have, traded or dealt with
(whether such customers have been obtained by the Employee or otherwise)
the Company, its predecessors, subsidiaries or affiliates.
13. Inventions. As between the Employee and the Company, all products, designs,
styles, processes, discoveries, materials, ideas, creations, inventions and
properties, whether or not furnished by the Employee, created, developed,
invented or used in connection with the Employee's employment hereunder or
prior to this Agreement, will be the sole and absolute property of the
Company for any and all purposes whatever in perpetuity, whether or not
conceived, discovered and/or developed during regular working hours. The
Employee will not have, and will not claim to have, under this Agreement or
otherwise, any right, title or interest of any kind or nature whatsoever in
or to any such products, processes, discoveries, materials ideals,
creations, inventions and properties.
14. Arbitration. Any controversy arising out of or relating to this Agreement
shall be resolved by arbitration in the State of Florida pursuant to the
rules of the American Arbitration Association then in effect.
15. Change of Control. In the event of a change in the control of the Company
by virtue of a sale, merger by the Company into, or the combination with,
another corporation or other form of takeover wherein the resulting entity
controls thirty-three percent (33%) or more of the voting stock, and there
is more than a 50% change in the composition of the Board, then if the
Employee is terminated without cause, as contemplated in Paragraph 9,
during the first one year following the change of control, the Employee's
severance benefits under Section 9 will be increased by 12 months, but in
no case will the total severance exceed 3 years base salary.
16. Further Instruments. The Employee will execute and deliver all such other
further instruments and documents as may be necessary, in the opinion of
the Company, to carry out the purposes of this Agreement, or to confirm,
assign, or convey to the Company any products, processes, discoveries,
materials, ideas, creations, inventions or properties referred to in
Paragraph 12 hereof, including the execution of all patent applications.
17. Notice. Any written notices required hereunder shall be deemed sufficient
if delivered personally or by certified mail to the Employer at its regular
business office and to the Employee at his home address on file with the
Company.
18. Assignment. A party hereto may not assign this Agreement or any rights or
obligations hereunder, without the consent of the other party hereto.
Provided, however, that upon the sale or transfer of all or substantially
all of the assets of the Company or upon the sale, merger by the Company
into, or the combination with, another corporation or other form of
takeover, this Agreement will (subject to the provisions of Paragraph 2
hereof) inure to the benefits of and be binding upon the person, firm or
corporation purchasing such assets, or the corporation
surviving such merger or consolidation or takeover, as the case may be.
The provisions of the Agreement are binding upon the heirs of the
Employee and upon the successors and assigns of the Company hereto.
19. Waiver of Breach. Waiver by either party of a breach of any provision of
this Agreement by the other shall not operate or be constructed as a waiver
of any subsequent breach by such other party.
20. Entire Agreement. This instrument contains the entire agreement of the
parties as to the subject matter hereof. It may not be changed orally, but
only by an agreement in writing signed by the party against whom
enforcement of any waiver, change, modification, extension or discharge is
sought.
21. Applicable Law. This Agreement shall be constructed in accordance with the
laws of the State of Florida.
22. Severability. If any provision of this Agreement is held to be invalid or
unenforceable by any court or tribunal of competent jurisdiction, the
remainder of this Agreement shall not be affected by such judgement, and
such provision shall be carried out as nearly as possible according to its
original terms and intent to eliminate such invalidity or unenforceability.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, as of the
day and year first above written.
PARAVANT INC.
BY:
/s/ Xxxxxxx X. Xxxxx May 17, 1999
__________________________________ ___________________
Xxxxxxx X. Xxxxx, Chairman Date
/s/ Xxxxxxx X. XxXxxxxx May 17, 1999
__________________________________ ___________________
Xxxxxxx X. XxXxxxxx, Employee Date
